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2019 (8) TMI 739

..... on and Steel Pvt. Ltd. [2019 (3) TMI 323 - SUPREME COURT] and held that if the Assessee Company-Respondent failed to discharge the onus required u/s 68, the Assessing Officer was justified in adding back the amounts to the Assessee's income. In the case in hand, though the stated transaction of alleged loan is through bank but the assessee was not able to explain or substantiate the source; creditworthiness of the creditor and the genuineness of the transactions before the AO and before the CIT(A) and Tribunal. It is also not in dispute that cash deposits were made in the bank account of the creditor just before advancing the loan to the assessee and no explanation was forthcoming before the authorities below and even during the course of arguments before the Tribunal. Therefore, in view of the concurrent findings of fact recorded by the AO, the CIT(A) and the Tribunal that the assessee was unable to satisfactorily explain the source of investment in the said property at any stage, no error could be pointed out in the impugned orders which may warrant interference by this Court. The law is well settled that the onus of proving the source of a sum of money found to have been rec .....

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..... in any circumstances once the identity of the creditors is established beyond doubt any addition is sustainable under Section 68 in relation to loan in the hands of the appellant ? (d) Whether the impugned order of the ITAT is highly cryptic and non speaking in nature and hence unsustainable in law; cases of different assesses involving different facts have been adjudicated in one stroke or brush ? (e) Whether on the facts and circumstances of the case, the Tribunal was justified in holding the decision in the case of Suman Gupta Vs ITO, applicable to the assesse's case ? (f) Whether the conclusion drawn by the Tribunal was based on conjecture, surmises or suspicion or on a failure to consider relevant evidence on the record ? 4. The appellant/assessee is assessed in the status of an individual and derives income from job work. An AIR information was received from the higher authorities that appellant along with seven other persons (who are also appellants here in connected appeals referred above) purchased a property -Kast Khata No. 106, Khet No. 152 measuring 1.385 hectares in Village Imliya, Pargana Baran, District Bulandshahr for a consideration of ₹ 23,78,500/- (inc .....

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..... hat the assessee has not been able to prove the genuineness of the transaction and creditworthiness of the creditor. 9. Being aggrieved, the assessee carried the matter to the Tribunal. The Tribunal vide order dated 12.7.2017 dismissed the appeal filed by the assessee and confirmed the orders passed by the authorities below. 10. Hence the present appeal. 11. Heard Sri Anurag Vajpeyi, learned counsel for the appellant and Sri Gaurav Mahajan, learned counsel for the department. 12. It is contended by learned counsel for the appellants that the conclusions drawn by the authorities below including the Tribunal were based on surmises, conjectures and suspicion which cannot be equated to that of findings based on evidence. It is also contended that even if the explanation offered by the assessee is not acceptable, the amounts credited cannot be treated as an income in the hands of the assessee and that the assessee cannot be compelled to prove the source of the creditor. It is further submitted that the additions made as unexplained investment as income from other sources in the hands of the assessee by the assessing officer is without application of mind and having no distant connection .....

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..... the assessee. Therefore, her creditworthiness and genuineness of the transaction is not proved. Further, the creditor is not produced before the AO for examination. Therefore, the conditions of section 68 have not been satisfied by the assessee. Thus, the assessee has not been able to substantiate the genuineness of the source of investment in the said property at any stage. Therefore, no interference is called for in the orders of the authorities below. Similarly, no arguments have been made with regard to house hold expenditure before the learned CIT(A) and no details have been given before the AO. Therefore, in the absence of any explanation of assessee the addition on household experiential is confirmed. In principle, I confirm the addition..... 17. From the findings recorded by the Tribunal, we find that the learned Tribunal had also noted in its order that the CIT (A) on perusal of the copy of the bank account of Smt Rihana returned a finding that the person extending loan had deposited cash in her bank account. A sum of Rs; 1.5 Lacs, ₹ 2 Lacs and ₹ 1.5 Lacs had been deposited in the Bank account in cash during the financial year 2004-05 prior to giving loan to t .....

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..... ion is what is the true nature and scope of Section 68 of the Act? When and in what circumstances Section 68 of the Act would come into play? That a bare reading of Section 68 suggests that there has to be credit of amounts in the books maintained by an assessees; such credit has to be of a sum during the previous year; and the assessees offer no explanation about the nature and source of such credit found in the books; or the explanation offered by the assessees in the opinion of the Assessing Officer is not satisfactory, it is only then the sum so credited may be charged to income-tax as the income of the assessees of that previous year. The expression "the assessees offer no explanation" means where the assessees offer no proper, reasonable and acceptable explanation as regards the sums found credited in the books maintained by the assessees. It is true the opinion of the Assessing Officer for not accepting the explanation offered by the assessees as not satisfactory is required to be based on proper appreciation of material and other attending circumstances available on record. The opinion of the Assessing Officer is required to be formed objectively with reference to .....

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..... ise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See Madan Lal Vs Gopi, (1980) 4 S.C.C. 255), Narendra Gopal Vidyarthi Vs Rajat Vidyarthi, (2009) 3 S.C.C. 287, Commr of Customs Vs Vijay Dasharath Patel, (2007) 4 S.C.C. 118, Metroark Ltd Vs CCE, (2004) 12 S.C.C. 105 and W.B. Electricity Regulatory Commission v. CESC Ltd. (2002) 8 S.C.C. (715). 24. Examined on the touchstone of the aforenoted legal principles, we are of the opinion that in the instant case the High Court has correctly concluded that no substantial question of law arises from the order of the Tribunal. All the authorities below, in particular the Tribunal, have observed in unison that the assessee did not produce any evidence to rebut the presumption drawn against him under Section 68 of the Act, by producing the parties in whose name the amounts in question had been credited by the assessee .....

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